HA 575 : Ethical And Legal Perspectives

Treatment without consent - Charlotte, the nurse on duty, had forced James into getting the injections therefore causing him emotional distress. Treating a competent patient who has validly refused treatment could constitute an assault or battery. The legal provisions supporting a competent patients’ right to refuse treatment in Australia can be found in both legislation throughout all the States and common law. The Australian Charter of Healthcare Rights is also a helpful source of guidance as it reinforces the common law position that is based upon the principle of patient autonomy. The High Court of Australia first articulated the principle or refusal of treatment in Marion’s case, stating that a legally competent person has a right “to choose what occurs with respect to his or her own person.” Under the NSW Health Patient Charter, consent in regard to an operation, procedure or treatment is both a specific legal requirement and an accepted part of good medical practice. Medical practitioners are also expected to clearly explain proposed treatment, and adequately inform their patients on significant risks and alternatives associated with the treatment.Failure to do this could result in legal action for assault and battery against a practitioner who performs the procedure. Charlotte made no effort to explain or gain a consent from James.

The two ethical dilemmas that stick out to me in the case are patient autonomy, and distributive justice. Patient autonomy is the patient’s right to make decisions about their care, including whether to accept or decline treatment (Taylor, 2014). Because the patient did not fully understand the information relayed in the consent form or the procedure, her patient autonomy may have been violated. This also may mean the consent form may not be valid. A signed consent form from a patient affords the hospital with an assumed duty to care for that patient (as cited Taylor, 2014). And the patient has given the medical professional permission to provide treatment. Therefore, it is important that the patient fully understands and can communicate that understanding when consenting to

The process of consent should apply not only to surgical procedures but all clinical procedures and examinations which involve any form of touching. This must not mean more forms: it means more communication. As part of the process of obtaining consent, except when they have indicated otherwise, patients should be given sufficient information about what is to take place, the risks, uncertainties, and possible negative consequences of the proposed treatment, about any alternatives and about the likely outcome, to enable them to make a choice about how to proceed.”5

According to the Oxford Dictionary consent is defined as ‘giving permission for something to happen or agreeing to do something’. They define confidentiality as ‘entrusted with private information and if something is intended to be kept secret or in confidence’ (Soanes and Hawker, 2005). As a healthcare professional consent and confidentiality are in place as protective vices, by gaining consent and keeping a patients confidentiality it protects both the patient and the healthcare professional. There are three types of consent: Verbal consent, consent in writing and implied consent. Depending on the situation each type of consent may not be acceptable. For example if a procedure is putting a patient at risk, is complex or invasive for example an operation, written consent is

Informed consent is the basis for all legal and moral aspects of a patient’s autonomy. Implied consent is when you and your physician interact in which the consent is assumed, such as in a physical exam by your doctor. Written consent is a more extensive form in which it mostly applies when there is testing or experiments involved over a period of time. The long process is making sure the patient properly understands the risk and benefits that could possible happen during and after the treatment. As a physician, he must respect the patient’s autonomy. For a patient to be an autonomous agent, he must have legitimate moral values. The patient has all the rights to his medical health and conditions that arise. When considering informed

This information must be easy for the patient to understand and must also be correct and truthful (RCN 2013). The Department of Health define consent as allowing a capable individual to make their own decisions about their health care without being pressured into making any decisions from others such as friends, family and health care professionals. In the adult nursing field it is legal and ethical to gain valid consent before starting a medical procedure, or providing care. This shows that the individuals rights have been respected which is good practice. If a healthcare professional did not respect an individual’s choices they could be accountable to legal proceedings. In common law touching or performing an act of care on a patient without valid consent can be classed as a criminal offence or battery. If a healthcare professional was not following the legal practice regarding consent then the individual may be faced with a criminal offence and disciplinary action will take place (Dimond 2009). The Human Rights Act states that all healthcare professionals should never judge an individual on their sex, race, religion, social origin, language or any other status.

Another issue with the implementation of Informed consent arises when the patient waives the right to Informed consent and leaves the right to make the decision on the physician. Though legally correct, this can cause psychological stress for the physician especially when the decision is about a life threatening medical condition. Moreover, this also makes the patient vulnerable to abuse. (Manthous, DeGirolamo, 2003)

Mr. B, the patient’s brother is Mr. E’s designee to make healthcare decisions in the event that he is unable to do so for himself. He is left to make these decisions without a code of ethics or without medical knowledge. He counts on the medical professionals to assist him. He has an ethical obligation to abide by his brothers wishes and directives. He is influenced by his own beliefs and his perceptions of what his brother would want. If he has the good faith belief that his brother did not understand the need for the ventilator or the outcome of refusing the treatment, then it is not unreasonable or unethical

Rannazzisi, J. T. (2010). Role of Authorized Agents in Communicating Controlled Substance . Retrieved from http://www.gpo.gov/fdsys/pkg/FR-2010-10-06/html/2010-25136.htm

At out facility the Medical Doctor must obtain the informed consent prior to HIPAA I can remember getting these consents signed and making sure the patient understood what was to be done.

Patient informed consent refers to the situation where the patient is fully informed on the consequences of their health care decision after which the patient gives the decision. For there to be informed consent, there are five elements that must be discussed. The first is the nature of the patient's decision then the applicable alternatives to the proposed intervention. Third are the risks, benefits and uncertainties associated with each of the alternatives. Fourth is the assessment of the patient's understanding and last is the acceptance of the intervention or an alternative by the patient. Before the patient's consent is considered to be valid, the patient's competency to make the decision must be addressed. The criteria for evaluating the patient's competency is clearly stated in section 3 of the 2005 Mental Capacity Act which states that provided the person is able to understand, retain and use information provided and to communicate their decision in any way such as talking or sign language, they are competent to make a decision. If a patient is treated against their refusal to consent, it amounts to the tort of battery or can also be considered the crime of assault. In addition to this, laws that touch on human rights reinforce the importance of the protection of the physical integrity of the individual in terms of their right to respect of their private life. Therefore, refusal of medical treatment is a human right.

Dimond (2009) and NHS choices (2016) explained consent as the process involving a person giving their approval to accept or refuse a treatment or interventions, after receiving detailed information from a health care professional about the risk or benefits of the procedure. In order for consent to be deemed valid, it needs to be given voluntarily without any influence or pressure from either a family member or clinician. In addition, the capacity of the person is important when giving consent and the ability to process the given information and make a decision. Tingle &Cribb (2014) agree, emphasizing that the autonomy of the person giving

The dignity and freedom of a patient should be respected so that people can make their own choices and develop their own life plans in the context of the society they belong to. . An individual has every right to take their own choices. A health care provider cannot treat a patient without his or her permission. If the patient is unable give the consent, then a lawful surrogate can provide consent. A lawful surrogate requires certain criteria like competence or has decision making capacity and is capable of realizing the consequence of consent. The consent from the patient may be implicit or explicit depending on the seriousness of health issues. Serious health issues like intrusive procedures

This consent has to be signed by the patient , the guardian or patient 's power of attorney . Severe reactions to the procedure leading to cardiopulmonary arrest / death are beyond the health care team 's capacity . As long as there were no mistakes when the procedure was done there will be no repercussions . Emergency apparatus and pharmaceuticals are available for any emergencies that may arise during the after the procedure

Consent can be quite tricky, a legal minefield for healthcare teams, this is due to the patients who will give or refuse to give private information about themselves who is legally competent but